A v A (Attorney General intervening) [Family Division]
| Jurisdiction | England & Wales |
| Judge | THE HON. MR JUSTICE MOYLAN |
| Judgment Date | 27 July 2012 |
| Neutral Citation | [2012] EWHC 2219 (Fam) |
| Docket Number | Case No: MB09F02150 |
| Court | Family Division |
| Date | 27 July 2012 |
-and-
[2012] EWHC 2219 (Fam)
The Hon. Mr Justice Moylan
Case No: MB09F02150
IN THE HIGH COURT OF JUSTICE FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Miss Proops (instructed by Messrs Newbys, Solicitors) for the Applicant
The Respondent appeared in person
Mr Gupta QC (instructed by the Treasury Solicitor) for the Intervener
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
This judgment is being handed down in private on 27th July 2012. It consists of 26 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.
The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.
The Hon Mr Justice Moylan:
In this case I must determine whether a ceremony of marriage which was conducted in England is capable of creating a valid marriage under English law and, if it is, whether it has.
The Petitioner and the Respondent assert that they are validly married pursuant to a ceremony of marriage which took place at the Middlesbrough Abubakr Mosque and Islamic Cultural Centre ("the Mosque") on 15th August 2002. The Petitioner, supported by the Respondent, seeks a declaration under section 55(a) of the Family Law Act 1986 that the marriage was a valid marriage at its inception. The Attorney General has intervened in this case and opposes the application, submitting that the ceremony was of no effect under English law and resulted in, what has become known as, a "non-marriage".
The Petitioner was represented at the hearing by Miss Proops. The Respondent appeared in person. The Attorney General was represented by Mr Gupta QC. I am extremely grateful to the Attorney General for intervening in this case.
The Petitioner, the Respondent and the Imam, Mr Allam, who conducted the ceremony have all provided written evidence and they each gave oral evidence. I have also read a number of witness statements from members of the family who attended the ceremony.
This case raises directly the issue of when a ceremony conducted in England and Wales which does not comply with the requirements of the Marriage Act 1949 ("the 1949 Act"):
(a) results in a marriage which is either a marriage which is entitled to legal recognition as a valid marriage or is a marriage which, although this might seem a contradiction in terms, results in a marriage which is a void marriage.
I put it this way in respect of a void marriage because such a marriage has the effect and consequences prescribed by the Matrimonial Causes Act 1973; or
(b) is of no effect under English law.
The progress of this case has been very unsatisfactory for a variety of reasons. However, I do not propose to address this matter in this judgment.
Background
The Petitioner and the Respondent were both born, in 1974 and 1978 respectively, and have lived their entire lives in the North East of England. The Petitioner has always worked in the family business which was started by his father. He is a co-director. The Petitioner and the Respondent have been in a relationship since the mid 1990s. They have three children. In 2001/2002 the Petitioner and Respondent decided to marry.
The Petitioner made the arrangements for the marriage. The Respondent took no part, leaving it to the Petitioner. He knew a lot of marriages had been conducted at the Mosque so he contacted the Chairman and asked whether he and the Respondent could get married at the Mosque. He was told that he could and booked the date. The Petitioner knew nothing about the need for notice or a certificate or any of the formal requirements of the 1949 Act and made no enquiries beyond his discussion with the Chairman of the Mosque. He accepted the Chairman's response that he and the Respondent could get married at the Mosque. In the course of his oral evidence the Petitioner said that he relied entirely on the Chairman and the Imam to tell him what was required. He also said that he and the Respondent feel they have been let down by the Chairman and the Imam. I agree with this observation.
The Mosque was registered for the solemnisation of marriages under section 41 of the 1949 Act on 22nd January 1992. A number of people have been certified as authorised to be present at the solemnisation of marriages in the Mosque under section 43 of the 1949 Act, including the Chairman of the Mosque, Mr Luft, in 1998 and the treasurer, Mr El-Naggar in 2003. Mr Allam became an authorised person on 27th February 2003. This information has been provided by the Superintendent Registrar's office which has also said that the first marriage in the Mosque to be registered under the 1949 Act took place on 19th June 1998.
The ceremony in this case took place on 15th August 2002 at the Mosque. The parties attended with the Petitioner's sisters and the Respondent's sister. They were met by the Chairman and the Imam. The ceremony was conducted by the Imam. Mr Luft was present during the ceremony. The parties were asked words to the effect of whether there was any reason why they could not marry and whether they both freely consented to marry. It was clearly a ceremony of marriage in which the parties each agreed to take the other as husband/wife. After the ceremony the Respondent asked the Imam whether they were now married or whether there was anything else they needed to do. He assured them that they were and that there was not. The parties signed a register book of some description and were provided with a document signed by the Imam and headed "Contract of Marriage". This certifies that the "Marriage Contract was concluded according to Islamic Sharia …" and that the marriage was "proposed by" the Petitioner and "accepted by" the Respondent in the presence of two named witnesses. One of the witnesses is the Chairman of the Mosque who, as I have said, has been an authorised person under the 1949 Act since 1998.
In her oral evidence, the Respondent said that she accepted the Imam's assurance that they had done everything they needed to do. She knew that the Mosque was a registered building—in the sense that the Petitioner had told her that marriages were conducted there—and said she had no reason to doubt what the Imam said.
I am satisfied by the evidence that both the Petitioner and the Respondent intended to contract a marriage which was valid under English law and believed that they had done so as a result of the ceremony at the Mosque.
Mr Allam, the Imam, understandably, has no specific recollection of the ceremony in this case. He was first appointed an Imam of the Mosque in 1996. He worked there, as a deputy to a more senior Imam, from 1996 to 1998. He was then appointed as the Imam of the Central Mosque in Middlesbrough where he stayed until March 2002 when he returned to the Abubakr Mosque following the departure of the previous Imam. As I have said, Mr Allam was not an authorised person until February 2003. In his oral evidence he said that his practice has changed since he became an authorised person. At the time of the ceremony in this case he did not discuss with the parties whether they wanted "just" a religious marriage or whether they wanted a civil marriage as well. He believed that he was performing a religious ceremony only. He knew about the requirements for a civil marriage but he did not discuss these with the parties in this case at all.
The parties have lived together as a married couple since the date of the ceremony. I am satisfied, as referred to above, that the parties considered themselves to be married demonstrated, for example, by the fact that in his will dated 15th March 1997 the Petitioner refers to the Respondent as his wife.
The Petitioner and the Respondent became aware that there might be problems with their marriage in about 2009 as a result of attending other marriages. The Respondent went to the Register Office to try and obtain a marriage certificate and was informed that their marriage was not registered.
Proceedings
By a Petition dated 21st August 2009, the Petitioner seeks a declaration pursuant to section 55(a) of the Family Law Act 1986 that the marriage celebrated on the 15th August 2002 between the Petitioner and the Respondent was a valid marriage at its inception. It is asserted in the Petition:
"1. On the 15th August 2002 the Petitioner was married to the Respondent at Middlesbrough Abubakr Mosque and Islamic Cultural Centre, Middlesbrough …
2. The marriage was concluded according to Islamic Sharia. …
4. The Petitioner and the Respondent believed that the marriage they underwent was valid and constituted a proper and valid marriage in accordance with English law.
5. Since the date of the marriage the Petitioner and the Respondent have lived together as husband and wife in the belief that they were validly married."
As I have indicated, the Respondent supports the Petition and filed an Answer to that effect.
The Attorney General filed an Answer in which it is denied that the ceremony created a valid marriage or a marriage entitled to recognition because it failed to comply with the requirements of the Marriage Act 1949 and/or was conducted outside the provisions of the Act. It is averred that the purported marriage is void under section 11(a)(iii) of the Matrimonial Causes Act 1973 in that the parties ...
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